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Witnesses, Character Evidence & Relevance Notes

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This is an extract of our Witnesses, Character Evidence & Relevance document, which we sell as part of our Criminal Procedure and Evidence Notes collection written by the top tier of Oxford students.

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CPE

i)

WITNESSES, RELEVANCE, CHARACTER EVIDENCE

COMPETENCE

To give evidence, must be competent (rules under YJCEA 99)
Act presumes all persons, whatever age competent (s53(1))
D never competent for the prosecution (s53(4-5))
but note this means if 2 Ds tried together neither may testify for prosecution (even if assists P against co-accused) unless plead guilty in advance

• Person can be found not competent if can't a) understand questions &
b) give answers which can be understood (s53(3))

• Any party/court itself can raise issue of putative W's competence (s54(1))

• party calling W must prove on b.o.p that competent (s54(2))

• court will treat W as having benefit of vulnerable witness directions - can hear expert evidence on it (s54(5))

• Note 2 general themes

• judge asking self whether W can understand/whether answers can be understood if means have to ask qs slowly using basic language/adapt practices - still means possibility of posing q in such a way W can understand

• also, if test satisfied, is only criteria of competence - wrong for judge add things in to that test (i.e unreliability/contradiction of W)
a) Age?

• Powell 06: said s53 makes clear age not determinant - V 4 at trial - cross-exam didn't go well so CA said should have retrospectively declared child incompetent &
tell jury to ignore (though can question if this even fair!)

• Barker 10: child sex - V 4.5 when testified - held properly ruled competent - not able say very much but could nod/shake head at right points - suggestive able understand

• Macpherson 06: again, age not determinant - CA said infant communicating only in baby language with mum not competent whereas child who speaks/understands basic English is competent - thought even 3y.o could be competent in that respect.

• suggests only not competence where no basic grasp of language/communication skills

• with kids always ways of facilitating process e.g tape of kid testimony asap to corroborate.
b) Mental capacity

• Courts have made clear disabled shouldn't be subject of unfounded stereotyping key issue is whether can give intelligible testimony

• Sed 04: witness with Alzheimer's - testimony patchy but judge said competent!
Don't need 100% mutual comprehension - for jury decide reliability - don't need to be faultless

• note R v F 13 need to make easy for W accc be understood - here clearly would've been able understand if diagrams of body were ready

• note (s53(4-5)) means if two Ds tried together, neither may testify for prosecution/ make out case to answer against their co-accused.
ii) VULNERABLE WITNESSES

• Various ways vulnerability can be catered for to allow W be found competent and/or give evidence effectively - 'special measures' etc

• Historically, vulnerabilities dealt with v badly e.g corroboration warning (now abolished)
Page 1 of 28 CPE

• Ofc need ensure D's rights protected in vulnerability cases

• Art 6(3)(d) right to examine/have examined witnesses against him

• Big q: does YJCEA 99 strike appropriate balance?

• 2 types of vulnerable witness: i) age/incapacity, ii) fear/distress:
i) s.16 YJCEA 99: eligible for assistance if,
(1)(a) under age of 18 at time of hearing, or
(b) if quality of evidence likely be diminished by… (completeness/coherence/
accuracy)
(2)(a) (i) W's mental disorder, (ii) otherwise a significant impairment of intelligence/social function
(b) physical disability/disorder ii) s.17: eligible for assistance on grounds of fear/distress about testifying if quality of evidence likely be diminished by fear/distress in connection with testifying

• consider nature/circs of offence & age of witness & other matters:

• incl. social/cultural/ethnic origins of W, religious/political opinions, D/D's family's behaviour towards W
iii) SPECIAL MEASURES

• s19(2): if W qualifies, court must then determine whether any of special measures would be likely to improve quality of evidence given & if so
(i) determine which of these measures would be likely maximise quality
(ii) give direction providing for measure(s) to apply 1) Screens s23 to prevent W being able see D - quite commonplace

• but W must be able to be seen by judge/jury/legal reps/interpreter etc

• AG for Akratin & Ohekelia v Steinhoff 05: V shielded, only 1 legal rep at time could see - PC said breached 23(2) but held not substantial miscarriage of justice. Face-to-face confrontation not essential

• but Broadhead 08 CA said this wouldn't necessarily be followed in England 2) Evidence via live video link s24 (8) W needs be able be seen by everybody 3) Giving evidence in private s25 - clear courtroom of ppl other than D, D's legal rep & interpreters

• where proceedings relate to sexual offence or s1/2 MSA 15, or

• reasonable grounds believe any person (other than D) sought/will seek intimidate W
4) Removal of wigs & gowns s26 5) Video-recorded evidence in chief s27

• interview with W to be admitted as W's evidence-in-chief

• not shown if court says shouldn't be in interests of justice (or part of it) s27(2)

• consider desirability of showing video vs prejudice to D

• but may still be inadmissible if W unavailable for cross-exam & parties haven't agreed no need for witness be available - s27(4)

• W must be called to be cross-examined unless that is provided for under special measures in the video (s28) or if agree - s27(5)

• s27(7) can't give other evidence without permission court - will grant permission if in interest of justice

• Davies 11 pre-recorded evidence can be admitted in spite of possibility witness might say something inconsistent in court - just needs be reflected in summing up

• Popescu 10: jury can only retire with transcript in exceptional circs e.g if D
want them to - must be specifically directed to judge

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• R v R 17: some members of jury had transcripts. Held judges ought to have discharged jury because had been reading transcripts & no other way to cure them 6) Video-recorded cross-examination/re-examination s28

• where have used s27 measures

• judge & legal reps must be able see/hear examination & communicate with person

• D must be able see & hear any examination & communicate with legal rep

• Can't be further cross-examined unless further directions

• only if they may be aware of something new or if in interests of justice

• note for this must have a 'ground rules' hearing first

• only available in certain pilot areas (Liverpool, Leeds & Kingston)

• note CA has upheld conviction on first challenge to use of s.28….

• R v PMH 18: complaint about child evidence in cross-exam played at trialvideo not working well & child's face couldn't always be seen. Also had changed counsel & new counsel hadn't had chance do own cross-exam. Rejected passages where child could be seen & never changed testimony. No new dramatic questions counsel would've wanted ask

• Plotnikoff & Woolfson benefits of s.28 worth waiting for 7) Examination through intermediaries s29

• essentially examination through interpreters etc

• function (s29(2)) = communicating with W - putting qs & relating answers explain etc 8) Aids to communication s30(2)

• devices to help answer qs/communicate e.g sign boards

note all measures available if vulnerable because age/capacity - s18(1)(a)
but if because fear/distress, just s23-28 - s18(1)(b)
s21 says for kids, special measures in s27/24 must be available - s21(3)
but not apply if court satisfied wouldn't diminish quality of evidence - s21(4)(b)
In these cases s23 (screen) must be used - s21(4A)
but this can be disabled for same reasons consider characteristics of W etc, nature of proceedings etc - s21(4C)

• s22A default position regarding Vs of sexual offences (over 18) = s27/24

• s32 where evidence been given in accordance with special measures direction,
judge must warn jury as necessary to ensure doesn't prejudice D

• note D cannot question W personally where W C in sexual offence - s34

• or 'protected' W - s35 - a child or cross-examined on evidence given by video recording when W was a child

• s36 gives trial judge discretion prevent personal cross-examination

• Where, on application by parties or of its own motion appears a) quality of evidence given i) likely diminish if exam by D personally ii) would improve if use this discretion b) wouldn't be contrary to interests of justice

• consider views expressed by W, nature of qs likely be asked, behaviour of D,
relationship between W & D

iv) ANONYMOUS WITNESSES (ESPECIALLY VULNERABLE)

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• Doorson - ECtHR whenever W anonymity granted, a conviction must not be based solely or to a decisive extent on the evidence of such persons, even when
'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours

• Davis followed ECtHr jurisprudence!

• Decision sparked controversy - thought up to 40 prisoners could appeal

• but Lord Mance said although this was common law position, scope for stat modification

Gov almost immediately introduced legislation - now in s86 CJA 09
P or D can apply for 'witness anonymity order' s87(1)
s86(2) lists things that can be done - largely what was done in Davis name/ID may be withheld, pseudonym, screens, voice modulation etc must remain visible to judge & jury (& normal voice audible)
s87 P must tell court identity of W (but not D), D must tell court & P
s88 3 conditions need be met for order:
a) order necessary: protect safety/property/prevent harm to pub interest b) consistent with D receiving fair trial c) W ought testify in interest of justice (given importance) & wouldn't without anonymity or pub interest harmed if no anonymity

• Also consider fear of W!

• s89 gives other relevant considerations:

• If material change of circumstance parties may apply have anonymity order discharged - s91

• s90(2) judge must warn jury that order doesn't prejudice D

• Pawar 09 said calling anonymous Ws mustn't become routine but not confined to terrorism/gangland killings - intimidation of W = part of modern life v) 'VULNERABLE' DEFENDANTS

• Vand T v UK: 11yo children - held formality & publicity of trial breached their Art 6 rights - unable participate effectively in process

• R(S) v Waltham Forest Youth Court 04 trial judge said no power order special measures, for 'vulnerable Ds' didn't want testify in front of each other - Parl appears have excluded Ds from these

• Richards 99: said courts retain inherent powers make orders in respect of witnesses ineligible under YCEA

• doesn't derogate from D's common law rights just augments protection to others

• SC v UK 05: severely mentally impaired 11yo - breach of A6 - couldn't effectively participate

• s33A YCEA brought in 06 - allows for live link be used

• where D U18 & ability participate effectively would be improved by use of live link

• or, where 18+, suffers mental disorder & live link would help

• note ss 33BA & 33BB not in force but for intermediaries for D where court considers necessary

• but intermediaries have already been used in some cases e.g Dixon

• Rashid 17: intermediary available as default where help with questioning but not for rest of trial - only exceptionally will need participate in whole trial

• note Ukpabio 08 said generally D's evidence must be in person but not absolute right appear & can be waived - may be good reason for absence

• note other measures for young Ds in Consolidated Criminal Practice Direction

• can visit/familiarise themselves with courtroom etc

• should be shielded from press & trials should be on same level (physically)

• should be allowed sit with fan & have informal communication with legal reps
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• take account of shorter attention span & no visible police presence

• R(D) v Camberwell Green Youth Court 05: considered whether s21(5)
compatible with A6 - requires special measures be given in respect of child witness in need of special protection without consideration of resultant restriction of D's rights is necessary/in interests of justice • HL rejected idea that A6 confers right to confront accusers!

• Would be irrational require courts issue special measures for children but then vary it in interest of justice!

1. SWEARING OF WITNESSES

• Once competent, q is whether will give evidence on oath

• YJCEA s55 must be 14+ & have sufficient appreciation of solemnity of occasion &
of particular responsibility to tell truth

• Presumption: if competent can be sworn - is for opposing party adduce evidence to contrary

• s1 Oaths Act 78 witnesses normally take oath

• if non religious - solemn affirmation under s6

• Penalties for perjury if lie on oath - same for non-religious

• Mahmood 12: religious people can choose not take oath

• Clear that form of oath/affirmation doesn't matter - is about positively indicating intention be bound on his conscience - failure observe formalities wont make testimony invalid

• s56 YCJEA 99 evidence of U14 can be heard - just need promise tell truth

• Strong argument for simplifying rules - no need for diff rules on children, religious
& non religious, or at all!?

• Could argue oath makes people pay attention & realise solemnity of occasion vi) COMPELLABILITY

• General rule: if competent, compellable

• Yusef 03: shows how seriously take it - imprisoned for 3m because didn't give evidence in court when compellable (contempt of court)

• Part of Art 6(3)(d) that D has right examine W against him & obtain attendance &
examination of W on his behalf under same conditions as Ws against him

• s1 Crim Evidence Act 1898 means D himself won't be called as W unless puts self forward

• but if appears, can be asked anything in x exam (subj to bad character etc)

• D not compellable because of general privilege against self-incrimination

• Does the privilege stretch beyond D?

• Bayes 1861: privilege will be granted where is a 'reasonable ground apprehend danger to the W' (danger of incrimination)

• Blunt v Park Lane Hotel 42: more stringent test - risk must be 'reasonably likely'

• note doesn't apply if W has already incriminated himself independently (Khan 07)

• note D not competent to testify for prosecution - s53(4-5) YJCEA 99

2. •

SPOUSES?
There are restrictions on the compellability of an accused's spouse
Traditionally H & W 1 person in law so could testify against each other
Non-compellability rule applies to lawfully wedded spouse but not not mere cohabitation (Hoskyn v MPC)

• s80 means spouse compellable only for specified offences (/give evidence for P/CoD)

• 'Specified offence' (s80(3)):

• allegation of assault/violence against spouse/CP

• allegation of violence against s.o U16 at time

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• sexual offence where V U16

• attempting/conspiring/aiding/abetting/counselling/procuring above

• note not compellable if also charged in proceedings - s80(4)

• s80(2) unless husband & wife jointly charged, wife both competent & compellable on behalf of the husband

• doesn't apply if divorced - treat as if never married thus compellable - s80(5)

• Bala 16: 'spouse' = someone whose 'union' with D recognised by Eng law as a union or civ partnership - could include polyamorous marriage

• note odd that V must be U16 for these offences - surely domestic violence against older am member just as bad? Remember spouse can still testify, just noncompellable

• A(B) 12: shows 'specified offences' have been narrowly construed - threat to destroy property didn't suffice - must have assault/threat of injury as part of definition

• had prosecution charged damage likely injure others would have probs sufficed

• Pitt 83: once take oath & enter witness box you give up immunity - can't then try hide behind barrier of non-compellability

• Nelson 92: should check whether W knew rules about spousal compellability but not mandatory

• Pearce 01: tried argue non-married couples should be treated same - A8 arguments - but held the discrimination justified in interests of fighting crime etc

• note while tempting infer that were spouse witnessed alleged incident (declined make statement at time) and not compellable atrial, and where D doesn't call on in defence, s80A: means failure of spouse/civil partner to give evidence shall not be subject of any comment by Prosecution

• breached in Davey 06 but said could cure by telling jury ignore (very idea of doing this highly questionable)

• If spouse refuses testify, can their evidence be admitted by other means?

• s114(d) CJA 03 hearsay evidence in interests of justice

• L (08) charged with rape of daughter (19) - specimen on sofa which H blamed on
W - W said never had sex on sofa - couldn't be allowed testify but admitted pretrial statement (hearsay) - allowed in interests of justice - could question how could it be when it goes against policy of s80? Wasn't against her/s.o U16!!

Reform spousal rules?
Given historical origins, surely out of date?
Idea is preserving stability of institution of marriage but arguably, if not compellable it puts spouses under strain because have to decide if they want to testify - would be better if compellable - gets rid of the disputes!
Thus could abolish altogether
Omerod said this & also, should institution of marriage be allowed take precedence over demands of criminal justice?!
Odd that doesn't apply to co-habitees?
Can also cause complications in other respects - what about violent affray where both adults/kids injured - wife can be forced to testify re injuries caused to kids but couldn't be compelled to testify about exact same behaviour in relation to adult victims
Brabyn disagrees - says it helps protect marriages & thus is in long term interests of society thus critical of L -> also says all close am members should be noncompellable if is position we're taking (except for domestic abuse inc sex offences
Page 6 of 28 CPE

vii) QUESTIONING
a) Examination in chief

• Everyone who tenders a witness will first of all examine their own witness - called the examination in chief

• W enters box, questioned by own side then other (cross-exam) then maybe by own side again (re-exam)

• General rule: cannot ask leading questions! (where you include answer in q or lead them to answer)

• supposed to be neutral - allow W tell own story - leading qs can assume disputes facts etc - also can't prompt W who struggles remember

• not inadmissible but jury must take into acc for weight Moor v Moor 54

• note can have another go if things still unclear at end of cross-exam

• Can Ws refresh memory? Yes! Under s139 CJA 03

• ss.1 can refresh from document made/verified by him at earlier time

• if states that doc records his recollection & at earlier time, recollection likely to have bee significantly better than at time of oral evidence

• ss.2 where sound recording made, if states it represented his recollection at time
& recollection at time likely have been significantly better & transcript made, he may refresh memory from transcript

• note at any stage in cause of giving evidence

• useful for e.g police if seen 80+ offences since

• McAfee judge may allow W refresh memory if bare wording of 139 satisfied, even where less than ideal case (here made many inconsistent statements)

• Mangena 09 makes clear don't have to stumble before using s139

• then, the Act goes further..

• s120(3) means statement made in doc which used to refresh memory, is crossexamined on & is thus received in evidence = admissible of any other matter stated of which oral evidence would be admissible

• Pashmfouraush 06: where cross-exam just on part of a doc used to refresh memory, whole doc doesn't become evidence

• Chinn 12: said if memory not actually refreshed by doc then can't rely!

• note s122 means jury can't take doc with them when retire unless (2)(a) court considers appropriate (b) all parties agree

• Hulme 07: warned not to exercise discretion lightly as jury might place disproportionate weight over oral evidence

• Court can exclude the doc under s.78 PACE/s.126(1) CJA because hearsay

• Hostile witnesses - a W may prove 'adverse' - s3 1865 CPA

• more than just unfavourable e.g has been got to by D (e.g GF), trying give contrary evidence/not tell truth

• Greenough v Eccles: hostile where not giving evidence expected to

• Prefas 88: said is where W is maliciously trying disrupt case

• Jobe 04: omission can = inconsistency thus hostile (fully complain but still hostile)

• Here fact W introducing something he had never said before and that known to be associate of D meant judge entitled decide hostile & allow cross-exam by party who called him

• Thompson 77: W who stood 'mute of malice' (wouldn't answer any qs bc didn't want tell truth) could be hostile (refuse answer qs)

• Previously under s3 this meant could introduce the previous inconsistent statement to cast doubt on W's credibility

• but s119 CJA 03 makes previous statement admissible as evidence!

• Gibbons: 119 comes into play only if W maintains that contents of prior statement not true
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